DONALDSON v. CALIFORNIA , 404 U.S. 968 (1971)

The Court today denies certiorari to a Black man who stands convicted by an all-White jury which had been selected through a process which petitioner alleges methodically excluded members of minority racial groups. The most pernicious of the practices used to exclude Black and Chicano jurors was what purported to be an intelligence test which, because of its cultural bias and its blatant unreliability, excluded nearly 50% of the otherwise qualified prospective jurors from minority groups. We would all agree that the brand of justice received in our courts should not depend upon the color of one's skin and that the selection of jury panels should not be tainted by the exclusion of racial groups. With all respect I fear precisely that result has obtained in the case.

Petitioner was convicted of the unlawful possession of marihuana. The State's evidence consisted of the testimony of two White police officers that they observed and smelled petitioner smoke a marihuana cigarette and that he dropped the cigarette on the ground before he was arrested. Petitioner steadfastly denied his guilt. He offered witnesses who 'testified that, because of an obstruction, it was not possible to see' the area where

petitioner was allegedly smoking marihuana, who supported his story 'that no one was smoking marihuana,' and who gave credence to the apparent theory of the defense that a Black man was being framed by White police officers. People v. Donaldson, Crim.No. 17615, at 3-4 (Cal.Ct.App., Dec. 21, 1970.)

The issue for the jury was the relative credibility of two White police officers and the four Black defense witnesses. Cf. Note, 79 Yale L. J. 531 (1970). That this question was close is indicated by the fact that after some 5 1/4 hours of deliberation the jury reported itself deadlocked eight-to-four and an Allen charge was then given. See Allen v. United States, 164 U.S. 492 (1896). It took an additional hour of deliberation before the jury resolved the credibility issue against petitioner and returned a verdict of guilty.

On appeal the California Court of Appeal affirmed the conviction, holding that petitioner, as a Black, had no standing to challenge the exclusion of Chicanos from the jury panel,1 that the exclusion of racial minorities was unintentional and that, in any event, it did not deny equal protection of the laws. The Supreme Court of California denied a petition for a hearing and petitioner now seeks a writ of certiorari.

The culturally-based intelligence test used in this case excludes almost half of the otherwise qualified prospective jurors from minority groups. It is also argued that members of racial minority groups are effectively barred from jury service by (1) the selection of prospec- [404 U.S. 968 , 970]

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